Paul Ferguson writes:
I recently became aware of an article that you wrote entitled, "Notes on Cryptography, Diigital Telephony, and the Bill of Rights", which was included in a recent CuD (5.32, Sun May 2, 1993). It appeared to be a message you had originally posted to the austin.eff newsgroup.
I don't recall posting it to that newsgroup, but it doesn't surprise me that it appeared there. I have strong connections with Austin and with EFF-Austin.
Maybe it's just that time of the day or perhaps I just need for you to clarify this a bit more -- How does the ECPA offer protection, as it is cuurrently written, against warranted search and seizure with regards to technologically advanced systems (such as would crypto be considered)?
ECPA doesn't mention encryption. It does, however, penalize unauthorized disclosure of communications. Whether "disclosure" occurs when a communication is seized, or when it's decrypted, is an open question.
"I. As my notes here suggest, these initiatives may be, in their essence, inconsistent with Constitutional guarantees of expression, association, and privacy."
(End Quote)
You are saying, in effect, that it is your opinion that these initiatives may be unconstitutional?
Yes.
If so, what course of action can be suggested, short of a class action lawsuit against an LEA after-the-fact?
Lawsuits are almost inherently reactive. The best thing is to lobby Congress for guarantees of the right to encrypt. State legislatures may also be a useful target.
By the way, the article was excellent and since I have not seen it posted here in cypherpunks, I'd like your permission to repost it.
You have permission to repost it anywhere. I believe it appeared already in cypherpunks, though. Maybe some people want to see it again. --Mike